INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
JURISDICTIONAL IMMUNITIES OF THE STATE
(GERMANYV.ITALY)
OBSERVATIONS OF ITALY ON THE PRELIMINARY
OBJECTIONS OF THE FEDERAL REPUBLIC OF GERMANY
REGARDING ITALY'S COUNTER-CLAIM
18 MAY2010 TABLE OF CONTENTS
1.Preliminary Considerations .................................................................. .........3.
II. Issues Where There Is No Dispute Between the Parties .............................................5....
III. Gerrnany's Attempt to Identify the Occurrences of World War Two as the "Real Cause" of the
Dispute Submitted by Italy ..................................................................................................................6
a) Introduction .........................................................................................6.......................................
b) The Occurrences During World War Two Do Not Constitute the Real Cause of the Dispute on
Reparation ..............................................................................................9..... .....................................
c) ltaly's AZZeged Attempt to Base the Jurisdiction of the Court on the Existence of a Continuing
Violation .............. ..................................... ..........................................Il..........................................
IV. The Real Cause of the Present Dispute Is to Be Found in the 1961 Settlement Agreements and
in the Events Following the Establishment of the "Remembrance, Responsibility and Future"
Foundation.........................................................................................................................................13
a) Applying the Distinction Between Facts Constituting the Source of the Rights and Facts
Constituting the Source of theDispute, the Present Case is within the Court'sJurisdiction ......13
b) The Facts which Are Relevant to Determining the Court's Jurisdiction over Italy's Counter-
Claim ..................................................................................................15..........................................
c) The 1961 Agreements and Their Threefold Implications .........................................16...............
d) German Practice after 1961 and in Particular the 2000 Law on the "Remembrance,
Responsibility and Future" Foundation, and its Implementing Measures ........................23..........
e) Conclusions .................................................. ............ ........................25........ ................................
V. Requests ........................................................................................................................................26I. Preliminary Considerations
1. In its Counter-Memorial of22 December 2009 Italy not only requested that the Court adjudge
and declare that aIl the claims presented by Germany regarding the merits of the case be
rejected. Italy also filed a Counter-Claim in accordance with Article 80 of the Rules of the
Court, respectfully asking the Court to adjudge and declare that, considering the existence of
an obligation under international law of reparation owed to the victims of war crimes and
crimes against humanity perpetrated by the Third Reich,
1. Germany has violated this obligation with regard to Italian victims of such crimes by
denying them effective reparation;
2. Germany's international responsibility is engaged for this conduct;
3. Germany must cease its wrongful conduct and offer appropriate and effective reparation
to these victims, by means of its own choosing, as weIl as through the conclusion of
agreements with Italy.
2. As shown in that Counter-Memorial, Italy based its Counter-Claim on the consideration that
Germany's Claim could not possibly be examined by the Court without, necessarily, ruling on
the merits of the issues raised by the Counter-Claim, as the Court is asked specifically to
decide whether jurisdictional immunity must be granted by the Italian courts to the German
State even if it has seriously and persistently breached its international obligation of
reparation for victims of war crimes and crimes against humanity for which it IS
internationally responsible.
3. In its Preliminary Objections regarding Italy's Counter-Claim, filed on 10 March 2010,
Germany requests the Court to adjudge and declare that the Italian Counter-Claim does not
come within the scope of the Court's jurisdiction, whether ratione temporis or ratione
materiae. According to Article 80(1) of the Rules of the Court, a Counter-Claim must meet
two main requirements: it must fall within the jurisdiction of the Court and must be directly
connected with the subject-matter ofthe Claim. Germany maintains that the [IfSt requirement
is absent in this case and devotes its full Preliminary Objections to an illustration of this
thesis. It refrains, however, from taking a stance on the inter-relatedness of its Claim and
Italy's Counter-Claim, considering that the issue may remain open "at this stage of the
!
proceedings".
1 Preliminary Objections of the Federal Republic of Germany regarding Italy's Counter-Claim (hereinafter PO),
para. 3, p4.
34. Consequently, this response from the ltalian side will focus on the arguments that enable a
refutation of the German objections, which are geared essentially to showing the absence
2
ratione temporis ofthe Court's jurisdiction to examine ltaly's Counter-Claim. ltaly does not
dispute Germany's right to leave open for now the question ofthe direct connection between
the Italian Counter-Claim and the German Claim, thereby explicitly reserving the right to
raise it at a later stage of the proceedings "if need be.,, It notes, however, what Germany is
implying at this point: if, at the end ofthe present incidental phase, the Court recognizes that
the Italian Counter-Claim faUs within its jurisdiction, it is possible that Germany will only
then decide to assert a further objection - still preliminary in nature - aUeging the lack of a
direct connection between Claim and Counter-Claim.
Italy, while recognizing that no explicit rule prec1udes the taking of such a course of action,
5.
wishes nonetheless ..:.- with aU due respect - to express its perplexities as to a procedural
strategy that does not seem consistent with the need for promptitude invoked by Germany (to
which the Court has hearkened by establishing a very strict timetable for filing the written
pleadings). It is, in fact, a strategy aimed at needlessly overburdening the CUITent proceedings,
since it prevents the Court from resolving completely and defmitively at the outset aU the
issues concerning the admissibility of the Counter-Claim. It also means that, once the Court
has - as is expected by the Italian side - dec1ared the admissibility of the Counter-Claim in
terms of jurisdiction, the Parties will be obliged to confront each other on the entirety of the
substantive issues relating to both Claim and Counter-Claim with a sort of "sword of
Damoc1es" hanging over the proceedings. It is obvious, in fact, that aU the written and oral
debate on the merits ofthe Counter-Claim would a posteriori prove completely redundant- a
very considerable and unnecessary waste oftime and energy for both the Parties and the Court
- were Germany in its Reply to finally decide to raise the issue ofthe connection and were the
Court then, in its fmal decision, purely hypotheticaUy, to accept it.
6. The procedural strategy chosen by the Applicant in short involves, as just noted, highly
manifest drawbacks. These are so obvious as to strengthen a conviction: the very fact that
Germany centres its Preliminary Objections exc1usive1y on the aUeged lack ofjurisdiction of
the Court in relation to the Italian Counter-Claim, refraining instead from discussing in depth
the question of the connection between its Claim and the ltalian Counter-Claim (already
amply demonstrated, be it noted, in the Italian Counter-Memorial), is open to being read as
an implicit admission that this connection cannot be seriously questioned. The connection is,
2 Indeed, ail the objections put forward by Gerrnany appear to Italy to be in fact aimed at showing the alleged
absence of the Court's competence ratione temporis (and not ratione materiae).
3 PO, para. 2, p. 3.
4 Counter-Memorial of Italy (hereinafter CM), paras. 7.6-7.8, p. 130 ff.
4 in fact, absolutely clear from the very fact that the subject-matter ofthe disputes in respect of
which the Italian courts have denied immunity of the German State from jurisdiction is
precisely the question ofreparation for victims ofcrimes committed by the Nazi authorities.
ll. Issues Where There Is No Dispute Between the Parties
7. In its Preliminary Objections Germany devotes several pages to showing that neither
its Declaration of30 April 2008, accepting the jurisdiction ofthe Court under Article 36(2) of
the Statute, nor the Joint Declaration issued on the occasion of the German-Italian
Governmental Consultations heId on 18 November 2008 in Trieste, provide a suitable
foundation for the jurisdiction of the Court in the present case. It should be emphasized that
there is full agreement on these points between the parties, Italy never having claimed the
contrary: it would therefore be superfluous to dwell now in detail on the arguments set out by
the Applicant in this regard.
8. Nor is there any dispute between the Parties conceming the fact that the European Convention
for the Peaceful Settlement ofDisputes of 1957 is the only possible basis for jurisdiction with
respect to both the German Claim and the Italian Counter-Claim. They also agree
unanimously that, under Article 27(a) of the Convention, the "critical date", corresponding to
the entry into force of the Convention in their mutual relations, is 18 April 1961: in other
words, only disputes relating to facts or situations subsequent to 18 April 1961 come within
the jurisdiction of the Court. Now, precisely, in the present Case both the Claim and the
Counter-Claim relate to facts and situations subsequent to the critical date: as Italy has aIready
amply demonstrated in its Counter-Memorial and as will be repeated in the next few pages,
there is no dispute between the Parties relating to facts or situations occure r d during World
War Two, but only relating to facts or situations subsequent to the entry into force ofthe 1957
European Convention.
9. Sorne clarification is required, however, about the meaning and the effects of the Joint
Declaration of 18 November 2008, which it is no coincidence both sides have cited countless
times in their respective written pleadings. It is certainly to be repeated once again that Italy
has in no way claimed that the Court's jurisdiction in relation to the Counter-Claim was based
on it. However, Italy is fmnly convinced that the Joint Declaration is far from having solely
political value, as Germany instead claims. 5
10. First, from the very fact of having solemnly declared that it respected Germany's decision to
apply to the Court and having stated its conviction that the Court's decision "will help clarify
5PO, para. 10, p. 8.
5 this complex issue," Italy committed itself not to challenge the Court's jurisdiction on the
issue of immunity. If it had, it would have been acting unlawfully, in clear violation of the
principle of good faith. In lœeping with the spirit of the Declaration, the Italian Government
has recently adopted a decree-Iaw which "provides for the suspension of the effects of
enforcement orders against States or international organizations whenever a case is pending
before an international judicial body concerning the establishment of jurisdictional
immunities ofsuch States or organizations from Italian jurisdiction"6
Il. Italy is also convinced that the Joint Declaration has legal implications for Germany too. The
latter cannot in fact deny having recognized, by agreeing to it, an evident truth: that the
question ofjurisdictional immunity arises with specific reference to, and is closely connected
with, the disputes over compensation for the victims of atrocities committed by the Nazi
authorities that are explicitly mentioned and conderne n d in the Declaration itself. In other
words, the Joint Declaration would be sufficient by itself to prove that Germany's Claim and
Italy's Counter-Claim are directly connected.
12. This clear recognition probably explains why Germany felt it preferable to refrain for now
from making objections as to the connection; but it also explains why Germany's decision to
raise the objection of the Court's lack of jurisdiction conceming the dispute over the
reparations appears to be questionable. In so doing, Germany seeks to avoid the Court's
addressing "this complex issue" in its entirety, something Italy instead considers highly
desirable and fully consistent with the spirit of the Joint Declaration. It seems, in fact, rather
incoherent on the one hand to show willingness to refer an important part of this "complex
issue" to the Court while on the other hand opposing the Court's joint consideration of the
other part, equally important and inextricably linked to the frrst.
nI. Germany's Attempt to Identify the Occurrences of World War Two as the
"Real Cause" of the Dispute Submitted by Italy
a) Introduction
13. In its Counter-Memorial of 22 December 2009, Italy submitted that the Court's jurisdiction
over the Counter-Claim is based on Article 1 of the European Convention for the Peaceful
6 Decree-Iaw (subject to parliamentary approval) of 28 April 2010, n. 63: "prevedere la sospensione
dell'efficacia dei titoli esecutivi nei confronti di Stati od organizzazioni internazionali alunrché sia pendente
giudizio dinanzi aunorgano giudiziario internazionale diretto all'accertamento della propria immunità dalla
giurisdizione italiana".
6 Settlement of Disputes of 29 April 1957, taken together with Article 36(1) of the Statute of
the Court. Italy also c1arified that the applicability of the European Convention to its Counter
Claim is not excluded by Article 27(a) of the Convention. In Italy's view, the dispute
submitted in the Counter-Claim has its source or real cause in the reparation regime
7
established by the two 1961 Agreements between Italy and Germany as well as in the events
following the establishment in 2000 of the "Remembrance, Responsibility and Future"
Foundation. Since both facts arose after 18 April 1961, the limitation ratione temporis
provided for by Article 27(a) of the European Convention does not apply to the dispute
submitted by Italy.
14. In its Preliminary Objections of 10 March 2010, Germany objects that Italy's Counter-Claim
falls outside the Court's jurisdiction ralione temporis, arguing that the dispute submitted by
Italy relates to facts or situations prior to the critical date for the purposes of Article 27(a) of
the European Convention. In invoking this exception to the Court's jurisdiction, Germany
relies on two main arguments, both of which - it must be made c1ear from the outset - appear
to be untenable: Germany simply ignores the distinction, affmned many times in the Court's
jurisprudence, between the source of the rights alleged to have been breached and the source
of the dispute, a distinction which is fundamental for the purposes of determining the source
or real cause of the present dispute.
15. In the first place, Germany submits that the dispute brought by Italy has its source or real
cause in the events that took place during World War Two. In Germany's view, these events
constitute the focal point of the arguments developed by Italy to support its c1aims. In its
Preliminary Objections, Germany argues as follows:
"Throughout its submissions in the Counter-Claim, Italy emphasizes that Germany
has failed to comply with the duties of reparation that arose for it during World War
II. Invariably, the focus of its demonstration is on the events of that time.
Accordingly, the facts from which the dispute arose occurred before the entry into
force of the European Convention. Rence, ratione temporis the Court lacks
jurisdiction".8
16. Raving presented the case submitted by Italy as one entirely revolving around the crimes
committed by the German Reich during World War Two and the legal consequences ensuing
from these crimes, Germany then asserts that Italy attempts to overcome the limitation ralione
d, Economie and Financial Questions and
7 Treaty on the Settlement of Certain Property-Relate Treaty
Concerning Compensation for ltalianationals Subjectedto National-Socialisteasures of Persecution,both
signed on 2 June 1961 and enteredintoforce,respectivelyon 16 September 1963 and on 31 July 1963 (CM,
Annex 3 and 4).
8 PO, para. 19, p. 12.
7 temporis set out in Article 27(a) of the European Convention by characterizing the violation
of the duty of reparation as a continuing violation. In other words, according to Germany,
Italy is attempting to bring the dispute on reparation within the temporal field covered by the
European Convention by relying on the argument that, since the violation of the duty of
reparation which arose during World War Two gave rise to a situation that has continued after
the critical date, the dispute submitted through the Counter-Claim falls within the jurisdiction
of the Court.
17. Germany's second argument contests the relevance, for the purposes of applying the
limitation clause provided under Article 27(a) of the European Convention, of the two
Settlement Agreements of 1961 and of the events following the establishment of the
"Remembrance, Responsibility and Future" Foundation. Germany argues that the 1961
Agreements cannot constitute the real cause of the dispute on reparation because they do not
provide a source of any rights that Italy might invoke against Germany with regard to the
issue of reparation. According to Germany, the 1961 Agreements are irrelevant for the
purposes of the Court's jurisdiction ratione temporis because they "are not the source of any
9
injustice or illegality". The same argument is used by Germany to justify its conclusion that
the events following the establishment of the "Remembrance, Responsibility and Future"
Foundation do notconstitute the real case of the dispute submitted by Italy. 1o
18. As already observed, Germany's arguments are unconvincing. With regard to the frrst
argument, Italy observes that Germany substantially reformulates the case submitted by Italy
through its Counter-Claim and trivializes the arguments developed by Italy in its counter
memorial. As regards the second argument, Germany's assessment of the two 1961
Agreements and of the events that took place since 2000 is clearly vitiated by the fact that,
when determining what constitutes the source or real cause of the present dispute, Germany
fails to appraise the fundamental distinction between the source of the rights alleged to have
been breached and the source of the dispute. In the following paragraphs of this section, Italy
will explain why it finds that Germany has attempted to reformulate the case submitted
through Italy's Counter-Claim. In the next section, it will rebut to Germany's arguments
conceming the 1961 Agreements and the subsequent events.
9PO, para. 33, p. 21 (emphasis added).
10PO, para. 37, p. 23.
8b) The Occurrences During World War Two Do Not Constitute the Real Cause o/the Dispute on
Reparation
19. In its judgment in the Phosphates in Morocco case, the Permanent Court of International
Justice observed:
"The question whether a given situation or fact is prior or subsequent to a particular
date is one to be decided in regard to each specific case, just as the question of the
situations or facts with regard to which the dispute arose must be decided in regard to
each specific case".Il
Thus, in order to determine the situations or facts with regard to which the dispute brought by
Italy arose, account must betaken of the specific subject-matter of this dispute.
20. In this respect, it must be reiterated that, contrary to what Germany appears to suggest, the
object of the dispute brought by Italy through its Counter-Claim is not whether Germany
committed war crimes or crimes against humanity against Italian victims during World War
Two. Nor is it whether these crimes gave rise to a duty on Germany to provide reparation.
These issues are not in dispute between the parties, as Germany has always, as it does again in
its Memorial submitted in the present case, acknowledged its international responsibility
deriving from the conduct of the German Reich. Thus, the present dispute did not arise
because of the unlawful conduct of German authorities during World War Two. Insofar as this
conduct gave rise to Germany's international responsibility, it can be regarded as the source
of the right of reparation claimed by Italy. However, it does not constitute the source or real
cause of the present dispute.
21. The dispute submitted by Italy has substantiaUy a twofold object. First, there is the disputed
question of the existence, at the time when, in the 2000s, the present dispute was triggered, of
a right of reparation in favour of Italy. In this respect, what the Court has to decide is
essentiaUy whether or not Italy, by concluding the two 1961 Settlement Agreements, waived
aU its claims for reparation, including the claims relating to the grave violations of
international humanitarian law committed by the German Reich during World War Two.
Secondly, and strictly linked to the first issue, there is the question of whether Germany, by
refusing to address the claims for reparation submitted to it after the establishment in 2000 of
the "Remembrance, Responsibility and Future" Foundation, failed to comply with its
obligations concerning reparation for the Italian victims of the crimes committed by the
IlSeries AIE,No. 74, p. 24. See also Right ofPassage over lndian TerritOlY (Merits), lCJ Reports 1960, p. 33:
"In order to fOrIll a judgment as to the Court's jurisdiction it is necessary to consider what is the subject of the
dispute".
9 German Reich, and if so, what the legal consequences arising from such wrongful conduct
are. Taking into account the subject-matter of the present dispute as here defmed, it is clear
that the facts or situations to which regard must be had for the purposes of applying the
temporal limitation clause set forth in Article 27(a) are not the occurrences of World War
Two. The dispute submitted by Italy is one with regard to a certain situation - the reparation
regime established by the two 1961 Settlement Agreements - and with regard to certain facts
- the events following the establishment of the "Remembrance, Responsibility and Future"
Foundation. These facts and situation, and not the occurrences during World War Two,
constitute the source or real cause of the dispute on reparation.
22. While it is clear that the present dispute relates to facts and situations subsequent to the
critical date for the purposes of Article 27(a) of the European Convention, Italy is aware and
does not deny that the facts which gave rise to Germany's responsibility and which constitute
the source of the rights claimed in the present case date back to a period before the exclusion
date. However, this by itself certainly does not imply that the Court lacks jurisdiction over the
dispute. In its judgment in the Electricity Company of Sofia and Bulgaria case, the Permanent
Court observed:
"It is true that a dispute may presuppose the existence of some prior situation or fact,
but it does not follow that the dispute arises in regard to that situation or fact. A
situation or fact in regard to which a dispute is said to have arisen must be the real
cause of the dispute. In the present case it is the subsequent acts with which the
Belgian Government reproaches the Bulgarian authorities with regard to a particular
application of the formula - which in itself has never been disputed - which form the
centre point of the argument and must be regarded as constituting the facts with
regard to which the dispute arose". 12
23. In its judgment in the Right of passage case the present Court expressed itself in similar
terms, as it observed that the dispute brought by Portugal feU within the temporal jurisdiction
13
of the Court "whatever may have been the earlier origin of one of its parts". Along much the
same line, it must be acknowledged that, independently of whether the present dispute may
presuppose the existence of prior situations or facts, the Court has jurisdiction over it since the
specific facts and situations with regard to which the dispute arose are facts and situations
subsequent to the critical date.
12 SeriesIB ,No. 77, p. 82.
13ICIReports 1960, p. 35.
10c) Italy's AllegedAttempt to Base the Jurisdiction ofthe Court on the Existence ofa Continuing
Violation
24. As has been shown, Germany argues that Italy, in order to avoid the operation of the temporal
limitation clause of Article 27(a), relies on the factthat the violation of theuty of reparation
committed by Germany constitutes a continuing wrongful act, which occurred before the
criticaldate but has continued after that date. In this respect, Germany flllds that there is a
parallelism between the dispute brought by Italy against France in the Phosphates in Morocco
case and the dispute brought by Italy in the present case. According to Germany, just as in the
Phosphates in Morocco case Italy asked the Permanent Court to determine the wrongfulness
of an act that occurred before the critical date and then attempted to overcome the temporal
limitation by relying on the existence of a continuing violation, similarly in the present case
Italy is attempting "to relocate the origin of the responsibility incurred by Nazi Germany
rather arbitrarily, presenting it as a continuing violation". 14 Vnsurprisingly, Germany
concludes by observing that the Court must reject Italy's argument in much the same way as
the Permanent Court did in 1938.
25. There is not much to say about this alleged attempt of Italy to overcome the time-limits
indicated in Article 27(a) by relying on the existence of a continuing wrongful act. Italy has
no difficulty in admitting that the notion of a continuing wrongful act has no relevance for the
purposes of determining the jurisdiction ratione temp.oris of the Court under Article 27(a). In
fact, Italy has never intended to rely on this argument. As aIready indicated, Italy argues that
the Court has jurisdiction over the dispute on reparation because the source or real cause of
this dispute is to be found in facts and situations - such as the 1961 Agreements and the
events following the establishment of the Foundation - which are subsequent to the critical
date.
26. It may be here appropriate, however, in order to further clarify Italy's position about the
subject-matter of the present dispute and the jurisdiction of the Court, to make sorne few
remarks on the alleged parallelism between the dispute submitted to the Permanent Court in
the Phosphates in Morocco case and the present dispute. It is submitted that Germany's
attempt to draw analogies between these two cases is incorrect and misleading. In the
Phosphates in Morocco case, the subject-matter of the dispute was the monopoly régime that
had been established by France through legislation adopted before the critical date. Italy asked
the Court to determine whether this monopoly régime was consistent with earlier French
treaty obligations. Vnder such circumstances, the Permanent Court had no difficulty in
14PO, para. 21, p. 13.
11 frnding that the acts undertaken by France before the critical date constituted "the fact with
regard to which the dispute arose,, 15 and that therefore it had no jurisdiction to adjudicate
upon the dispute submitted by Italy.
27. Unlike the situation in the Phosphates in Morocco case, the subject-matter of the present
dispute is not whether during World War Two German authorities committed grave violations
of international humanitarian law giving rise to Germany's international responsibility vis-à
vis Italy. These facts do not constitute the subject-matter of the present dispute simply because
they are not in dispute between the parties. Although the present dispute concerns the issue of
the reparation owed by Germany as a consequence of the crimes committed by German
authorities in the period between 1943 and 1945, the focal point of the dispute - le fait
générateur16 - is to be found in facts and situations subsequent to the critical date. Thus,
Germany's attempt to suggest that the present dispute presents the same situation as in the
Phosphates in Morocco case is simply unconvincing.
28. What has just been said with regard to the dispute in the Phosphates in Morocco case equally
apphes to the several decisions of the European Court of Ruman Rights referred to in
Germany's Preliminary Objections. Germany devotes four pages of its Preliminary
Objections to an analysis of the jurisprudence of the European Court, in order to illustrate the
principles which the Strasbourg Court applies when assessing its jurisdiction ratione
temporis.17 The attempt is to demonstrate that the Court's jurisdiction ratione temporis is to
be determined in relation to the facts constitutive of the aUeged wrongful act and that
subsequent failure of the remedies aimed at redressing that wrongful act cannot bring it within
the Court's jurisdiction.
29. The German argument on this point does not deserve a lengthy answer. In fact, the
jurisprudence referred to by Germany is clearly not pertinent to the point at issue in the
present case. The jurisdiction ratione temporis of the European Court of Ruman Rights is not
governed by a temporal limitation clause such as that provided by Article 27(a) of the
European Convention. Moreover, and most importantly, aU the decisions of the Strasbourg
Court reported by Germany refer to cases which differ in at least one fundamental respect
from the present case. While aU these cases also raised the issue of reparation, in fact they
focused essentiaUy on the question of whether a State's conduct that happened before the
'
entry into force of the European Convention on Ruman Rights in respect to that State had to
be regarded as constituting an infringement of an individual right covered by the European
15
16 SerieAIB ,No. 74, p. 29.
17Ibid., p. 23.
PO, paras. 23-29, pp. 15-19
12 Convention. Thus, it was the State's conduct prior to the critical date, and not subsequent
events pertaining to the issue of reparation, which constituted the centre point of these cases.
In the present case, on the contrary, the focus is not on the occurrences during World War
Two and on the wrongful acts com.mitted at that time by German authorities. Those
occurrences constitute the background situation and the source of the rights and obligations of
the parties. Admittedly, these facts occurred prior to the critical date. But this is irrelevant for
the purposes of Court's jurisdictionratione temporis. Significantly, the Strasbourg Court too
has repeatedly acknowledged that it is competent to examine facts prior to ratification by the
State concemed to the extent that they "could be considered to have created a situation
extending beyond that date or may be relevant for the understanding of facts occurring after
18
that date".
IV. The Real Cause of the Present Dispute Is to Be Found in the 1961 Settlement
Agreements and in the Events Following the Establishment of the
"Remembrance, Responsibility and Future" Foundation
a) Applying the Distinction Between Facts Constituting the Source of the Rights and Facts
Constituting the Source ofthe Dispute, the Present Case is within the Court's Jurisdiction
30. As already indicated, Germany denies that the 1961 Settlement Agreements can be regarded
as constituting the source or real cause of the present dispute, arguing that these agreements
are not "the cause of action on which Italy continues to rely in presenting its claims" but
merely "an element in the large process of settling the consequences of World War II'19
Germany relies on a similar argument to challenge the relevance for the purposes of the
Court's jurisdiction of the events following the enactrnent of the Law establishing the
"Remembrance, Responsibility and Future" Foundation. Italy submits that, by focusing
exclusively on the occurrences of World War Two and trying to ignore the 1961 Agreements
and the later events in the 2000s, Germany is failing to apply to the facts of the present case
the legal tests to which recourse must be had, according to established jurisprudence of this
18European Court ofHuman Rights, Broniowsld v. Po/and [Ge], no. 31443/96, Decision, 19 December 2002,
para. 74 (adde, namely, Khachatrya71 v. Armenia, no. 31761/04, Judgment, 1 December 2009, para. 47;
Grig01yev andKakaurova v. Russia, no. l3820/04, Judgment, 12 April 2007, para. 25; see also, Silih v. Slovenia
[GC], Application no. 71463/01, Judgment of 9 Apri1 2009; Harutyunyan v. Armenia, no. 36549/03, Judgment,
28 June 2007, paras. 49-50). See also the following remark of the Strasbourg Court in its decision of 23 May
1995 in the case Yagci andSargin v. Turquie: "[The Court] therefore cannot accept the Government's argument
that even facts subsequent to 22 January 1990 are excluded from its jurisdiction where they are merely
extensions of an already existing situation. From the critical date onwards aIl the State's acts and omissions not
only must conform to the Convention but are also undoubtedly subject to review by the Convention institutions"
(para. 40).
19PO,para. 33, p. 21.
13 Court, in order to detertnine whether a dispute falls within the jurisdiction ratione temporis of
the Court.
31. The fundamental test, which the Court clearly enunciated in its judgment in the Right of
passage case, is based on the "distinction between the situations or facts which constitute the
source of the rights claimed by one of the Parties and the situations or facts which are the
20
source of the dispute". Applying this test to the dispute submitted by Portugal, the Court
found that, while the right of passage claimed by Portugal might have had its source in
situations or facts which had occurred well before the critical date, the facts or situation
constituting the real cause of the dispute took place only in 1954 - after the critical date -
when a new situation was brought about as a consequence of India's opposition to the
exercise of Portugal's right of passage. In that case, the Court specified that "[a] frnding that
the Court has jurisdiction in this case will not involve giving any retroactive effect to India's
acceptance of the compulsory jurisdiction", since "[t]he Court indeed will only have to pass
upon the existence of the right claimed by Portugal as at July 1954, upon the alleged failure of
lndia to comply with its obligations at that time and upon any redress in respect of such a
21
failure".
32. Relying on the test applied by the Court in the Right of passage case, Italy submits that,
contrary to the view held by Germany, the occurrences during World War Two constitute the
source of Italy's right of reparation and are therefore irrelevant for the purposes of
determining the Court's jurisdiction ratione temporis. On the other hand, it is a fact that the
1961 Settlement Agreements brought about a new legal situation between Italy and Germany
in relation to the issue of reparation. It is also a fact that it was only in the context of the
developments of the 2000s that Germany clearly expressed its refusaI to compensate Italian
victims of the grave violations of international humanitarian law committed by Nazi
Germany. These facts being the real cause of the present dispute, the Court has jurisdiction to
pass upon the existence nowadays of the right claimed by Italy, upon the failure of Germany
to comply with its obligation of reparation and upon any redress in respect of such a failure.
33. The following paragraphs will be devoted showing that the 1961 Agreements and the
developments of the 2000s brought about a new situation in the relation between Italy and
Germany and that it is in relation to these facts and situations that the present dispute arose.
Before tuming to this, a remark of a general character is called for. Germany strongly
complains that Italy's interpretation of Article 27(a) of the European Convention would
gravely affect the object and purpose of this clause. Germany argues as follows:
20ICJ Reports1960, p. 35.
21Ibid., pp. 35-36.
14 "Italy's line of reasoning is very simple and straightforward: it does not
recognize any of the cut-off dates established either by treaty or in a unilateral
declaration. Any new request of an injured party after the critical date would suffice
to bring the dispute concerned within the jurisdiction of the Court. Such requests
could be repeated ad libitum. Thus, the basic premise of consent, the foundation stone
of the international system of judicial settlement, would be rendered nugatory at an
enormous price for the idea of judicial settlement of international disputes". 22
34. In fact, Italy's interpretation of this type of clause is entirely consistent with the Court's
interpretation, focusing, as the Court does, on the facts and situations which lie at the heart of
the dispute. In its judgment in the Phosphates in Morocco case, the Permanent Court observed
that this type of clause is inserted in order "to preclude the possibility of the submission to the
Court by means of an application of situations or facts dating from a period when the State
whose action was impugned was not in a position to foresee the legal proceedings to which
these facts and situations might give rise". 23 Considering that in the very weeks when, in
1961, Germany decided to ratify the 1957 European Convention, Germany was also
negotiating with Italy the two Settlement Agreements, it seems difficult to argue that
Germany could not foresee legal proceedings, such as the present ones, which to a large
extent revolve around the interpretation of these two Agreements.
b) The Facts which Are Relevant to Determining the Court's Jurisdiction over Italy's Counter
Claim
35. Italy bases its Counter-Claim on a new fact, or, rectius,a set of new facts, which aU took
place after the critical date- 18 April 1961 - and which are at the origin of a dispute between
the parties on the issue of the implementation of the obligations of reparation owed to ltalian
victims of serious violations of international law perpetrated by the German Reich.
36. These new facts are:
- frrst, the stipulation of the two 1961 Agreements between Germany and Italy on the issue of
"indemnity in favour of Italian nationals affected by National Socialist measures of
persecution" (the Indemnity Treaty) and on the "Settlement of Pending Claims of an
Economic Nature", and by the implicit and explicit consequences of these Agreements (i.e.
the fact that Germany implicitly, and to a certain extent explicitly, acknowledged both that it
could not invoke the waiver clause contained in Article 77(4) of the 1947 Peace Treaty, and
22PO, para.28,p. 18.
23SeriesAIB, No. 74,p.24.
15 the fact that the 1961 Treaty explicitly recognizes the right of Italian victims to present c1aims
under German law);
- secondly, the subsequent practice (inc1uding the adoption of further measures of
compensation and reparation to victims of serious IHL violation and the persistent denial of
reparation under German law to a very large number of Italian victims on discriminatory
grounds even very recently, specificaIly under the 2000 Law on the "Remembrance,
Responsibility and Future" Foundation).
37. It is this whole set of new facts which constitutes the "real cause" of the dispute introduced by
Italy with its Counter-Claim. It is not, as Germany inappropriately considers, the
unchaIlenged and uncontroversial obligation to provide for reparation to victims of serious
international humanitarian law violations which arose from the events of World War Two. On
this latter issue, as emphasized above, there is no· dispute between the parties (see supra
Section II, para. 8 and Section III para. 20). And the persistent denial of reparation represents
the violation of an ongoing obligation incumbent on Germany; an obligation which has,
though indirectly and implicitly (but nonetheless c1early), been affmned through the 1961
Agreements, and is at the core of Italy's Counter-Claim. The 1961 Agreements represented
the tuming point and should be seen as the frrst step in a process of reparation to Italian
victims which was never fully implemented.
38. Most of the issues that should be dealt with in this matter will have to be fully discussed
together with the merits of the case. Nevertheless, it is necessary, at this stage already, to
briefly dweIl on this set of new facts. In particular, it is important to bring out how the 1961
Agreements, in their meaning and implications, go weIl beyond their merely contractual terms
(i.e. the legal obligations which are expressly affrrmed).
c) The 1961 Agreements and Their Threef oldImplications
39. In the years following World War Two the issue of reparations by Germany for aIl kinds of
war damages was very sensitive indeed and, without going into the details of that process at
this stage, it is weIl known that the Allied Powers needed to strike a balance between the will
to impose a heavy toll on Germany and the attempt not to undermine their chances to resort to
German' s econornic potential, as weIl as of stability and growth in postwar Europe.
40. As a consequence, the issue of reparations was dealt with piecemeal: some reparations were
directly enforced by the Allied Powers; some were paid by Germany immediately after the
war; some were postponed for a few years; some were frozen for several decades; some others
16r
,
were waived; sorne were addressed through international treaties; sorne others were left to
internaI measures by Germany. Finally, sorne claims could not even be discussed and settled,
since the events relating to them had not been fuUy established in aU details. In this category,
one would clearly comprise reparations for events which had not yet been ascertained by the
end of the war, or were fully clarified onlyyears (sometimes even decades) after the war (e.g.
the massacres which occurred in the Italian Apennines, such as Civitella orMarzabotto, which
have been fuIly established only fairly recently).
41. In the fifties, several States which had pending questionswith Germany started to engage in a
politicalprocess which eventuaUy led to the settlement of a variety of pending c1aims through
several treaties. These countries included France, the United Kingdom, Belgium, the
Netherlands, Luxembourg, Denmark, Norway and Greece, which in 1956 presented requests
for the compensation of victims of Nazi persecutions. Italy was not originaUy among these
States, but it subsequentlyjoined the group and started negotiations with Germany that led to
the conclusion of the two 1961 Agreements.
42. On 2 June 1961, the Federal Republic of Germany and Italy concluded two treaties: (i) an
"Agreement about the settlement of certain questions of a proprietary, economic and fmancial
character" (the "Settlement Treaty"), and (ii) a "Treaty about indemnity in favour of Italian
nationals affected byNational Socialist measures of persecution" (the "Indemnity Treaty").
43. As mentioned above, these Agreements are relevant for at least three different reasons.
- First, through the stipulation of the Agreements Germany waived what it considered to be its
right to avail itself of the Italian waiver of aIl claims (assuming that this waiver could cover
serious violations ofIHL, which Italy believes it does not).
- Second, through these Agreements, for the frrst time after World War Two, Germany agreed
to meet Italian claims, thus recognizing that an obligation of reparation towards Italy existed
and opening the way for a process of reparations.
v
- Third, through the Agreements and in the Agreements themsel es, Germany made it clear
that these did not exhaust the range of reparations which could be provided to Italian victims,
by explicitly recognizing that other avenues remained available (or would become available)
under German legislation. Moreover, the Agreements themselv s did not cover an claims, but
only limited categories.
Treaty, provided that Germ
44. In particular,the second treaty,the Indemnit y any would pay Italy
an amount of 40 million Deutsche Mark for the benefit of ltalian nationals affected by
17 measures of National Socialist persecution for reasons of race, faith or ideology. This treaty
was only limited to a certain category of victims of serious violations of intemational law and
it admittedly did not aim at covering all possible cases. This is attested both by the text of the
treaty (there was an explicit "without prejudice" clause covering any rights Italian victims of
persecution might have under German law) and by the fact that other cases were not within
the scope of the Agreement. Nonetheless, it would hardly be logical to interpret this treaty as
meaning that aU other victims of serious IHL violations were denied all reparation. Nothing in
the treaty supports this interpretation; nor does the intention of the Parties. The treaty left
many questions opened and brought about a new situation in which victims could fmally
obtain reparation.
45. This interpretation is confrrmed by a variety of elements. First of aU, Article 3 of the treaty
clarified that the payment of the mentioned amount "shall finally settle between the Federal
Republic and Italy aU questions which are within the subject-matter of the treaty, without
prejudice to possible claims of Italian nationals on the basis of the German laws on
compensation of victims of National Socialist persecution (Wiedergutmachungsgesetze)". 24
This cleady entails that questions which were not specifically within the subject-matter of the
treaty were left outside the scope of the treaty itself (and thus, clearly, also outside the scope
of Article 3); however, it in no way means that they had been ignored, or had to be ignored. It
is logical to conclude, and certainly this is Italy's perception, that for other categories of
victims other avenues were going to be opened, including the filing of claims under German
laws.
46. In this respect, and for the purpose of emphasizing that Germany was fully aware that this
Agreement created, in 1961, a radically new situation, it is significant to note that the treaty
was accompanied by an "exchange of letters" (Briefwechsel) between the Secretary of State
of the German Foreign Office and the Italian Ambassador in Bonn of the same day, clarifying
4 " "Mikel 3 Mit der in Mikel 1 bezeicbneten Zahlung sind zwischen der Bundesrepublik Deutschland und der
ItalienischenRepublik, unbeschadet etwaiger Ansprüche italienischerStaatsangehôrigerauf Grund der
deutschen Wiedergutmachungsgesetze, aIle Fragen, die Gegenstand dieses Vertrages sind, abschlieBend
geregelt". See Report of the Foreign Relations Committee on the draft of the "Indemnity Treaty" of 28
November 1962, sec. A: "... mit dem Ziel, eine Entschadigung auch derjenigen Verfolgzunermoglichen, die
Ansprüche nach dem Bundesentschadigungsgesetz yom 29. Juni 1956 nicht haben". See alsoKurt Schwerin,
German Compensation for Victims of Nazi Persecution, 67 Northwestern University Law Review (1972), pp.
479-527 (with a description of the Bundesentschadigungsgesetz pp. 495-511), at 510: "Many victims of Nazi
persecution do not suit the requirements of BEG [Bundesentschadigungsgesetz] paragraph 4, or of any of the
paragraphs just discussed. Among these victims are Belgian, Danish, Dutch or French nationals who were
persecutedand damaged in their own countries. To meet their claims, a number of nations have concluded with
the Federal Republic of Germany 'global agreements' under which they receive funds for payment to individual
claimants. The individuals have no direct claim against Germany, but rather must file their claims in their own
nations".
18 the implicit effects of the treaty.25 In his letter, the Secretary of State informed the Italian
Government that "the German Government will see to it that applications of Italian nationals
under the Bundesentschadigungsgesetz (Federal Compensation Law) and the
Bundesrückerstattungsgesetz (Federal Restitution Law) will be dealt with without raising
objections based on Art. 77(4) of the Peace Treaty with Italy of 1947 ("ohne daB hierbei die
Einwendungen aus Artikel 77 Abs. 4 des genannten Friedensvertrages erhoben werden
sollen" / "senza che sia sollevata l'obiezione di cui aIl'art. 77 par. 4 deI detto Trattato di
Pace")", which up to that point had been successfully raised and had led to the discarding of
requests by Italian victims. The Secretary further promised that aIl applications which had
been previously rejected because of that provision of the Peace Treaty would be reconsidered.
On behalf of the Italian Government, the Italian Ambassador welcomed the German
assurances and declared his agreement.
47. Accordingly, German governmental authorities indicated that they would inform the relevant
authorities that claims by Italian victims under German legislation which had been discarded
in the fifties on the basis of the waiver clause contained in the 1947 treaties should be
reexamined in the light of the new situation. What else could this mean if not that Germany
recognized that the 1961 Agreements entailed a fundamental change in the situation? This
was confrrmed by the Memorandum (Denkschrift) submitted to the legislative bodies on 30
May 1962, in which the Federal Government recalled Art. 77(4) of the Peace Treaty as
generally excluding Italian claims against Germany and German nationals arising out of
World War II, but added: "However, the special character of the claims to compensation for
measures of National Socialist persecution (Ansprüche auf Wiedergutmachung
nationalsozialistischer VerfolgungsmaBnahmen) justifies not raising objections based on Art.
77 (4) to applications pursuant to the Bundesentschadigungsgesetz. (...) Regarding the
Bundesrückerstattungsgesetz of 19 July 1957, the Federal Government [...] instructed the
German authorities in charge not to raise objections based on Art. 77(4) of the Peace Treaty
26
with Italy of 10 February 1947 in the case of claims to restitution.,,
48. Now, in Italy's view, this is clear evidence that both parties considered and agreed that the
1961 Indemnity Treaty created a new situation, which led to the waiver of the right by
Germany to avail itself of the clause of Article 77(4) of the 1947 Peace Treaty. This is also
evidence that the 1961 Agreements created a new situation which determined new
expectations for Italian victims, based on a profound reorganization of the relationships
25"Briefwechsel"of 2 June 1961 Annex 4 to CM or inBundesgesetzblatt 196n, p.795 et seq.
26Drucksache des Deutschen Bundestages IV/43p.9.
19 between Italy and Italian victims, on the one side, and Germany and its judicial and
administrative bodies on the other, concerning the issue of reparations.
49. Moreover, even assuming that Germany did not explicitly - as it did, as confrrmed by the
above-mentioned exchange of letters - admit that the 1961 Agreements created a new
situation, the Agreements (like any international treaty) clearly bear some relevance not only
for what they expressly stipulate (their contractual dimension), but also for what they broadly
mean and for the consequences they entail as a manifestation of the opinion of States and of
their recognition of given situations.
50. Furthermore, the Agreements are also relevant for the expectations they did create for
individual ltalian victirns against the background of the clear change in circumstances which
they brought about. As lucidly stated by a German historian familiar with these issues, the
1961 Agreements were the beginning (and not the end) of a process of reparation which was
27
unfortunately never totally accomplished. It is precisely these expectations, which have
never been satisfied by Germany, that have determined the filing of aIl those claims which are
now pending before Italian Courts and the case law Germany challenges with·its Claim.
51. In light of the above, it can be safely concluded that the 1961 Agreements must be considered
"new facts" which occurred after the critical date (18 April 1961) and which justify the
exercise of jurisdiction by the Court. There is little doubt that these Agreements represent by
no means the fmal word on the issue of reparations, as Germany seems to argue, and there is
also little doubt that both Parties are aware that it is precisely the fact that these Agreements
came into existence that brings Italy to present its Counter-Claim to the Court today.
52. As far as the argument that the 1961 Agreements did not reopen, but closed, the issue of
reparations is concerned, it should be emphasized that this is a matter that concerns the
interpretation of these Agreements, and it is thus aIready per se evidence that a dispute
between the parties on their meaning exists.
53. Italy, however, must observe that the waiver clauses contained in the 1961 Agreements, as
weIl as many identical clauses contained in similar agreements with many other countries, are
by no means a clear indication that the issue of reparation was defmitely closed, as Germany
has argued. Quite the contrary. As has been rightly pointed out by Pierre d'Argent, these
clauses containing waivers of any future claim were differently interpreted by the signatories
27 Interview with Lutz Klinkhammer, 'Il peso deI passato. Germania, Italia e i risarcimenti aile vittime deI
nazismo' by MicheIa PonzaniGiomale diStoria(Rivista elettronica registrata / ISSN 2036-4938) 01.06.2009 at
http://www.giornaledistoria.netlindex.php?&nomeCat=Mestiere%20di%20stor…
passato.%20Germania,%20Italia%20e%20i%20risarcimenti%20alle%20vittime%20del%20nazismo&sezione=1
&content=l 4&cat=l2&view=2&id=I l
20 to treaties of this kind.8 In exchanges of letters accompanying most of these treaties (but not
the Agreements with Italy), the German government specified that what was meant by these
clauses was that the State beneficiary would no longer be entitled to turn to Germany to seek
for compensation. This interpretation, however, was merely Germany's appreciation of the
clauses, and it was uniformly and systematically rejected by ail counterparts, which normally
reserved themselves the right to claim further compensation for aIl matters not specifically
covered by the treaty. Now, it is pretty clear that this was justified by the fact it had been
decided, through the London Agreement on Germany's External Debt (to which Germany
was a party), that the negotiations for a global settlement of war reparations by Germany
would continue until a final agreement could be reached. Meanwhile, most issues of
reparations were postponed. Clearly, against this background, no State was ready to accept
any limitation on its rights to claim compensation in the form of blanket waiver clauses. In
other words, these interstate settlements are [mal only insofar as their rather limited object is
concerned, and it is only with reference to that specific object that the [mal word on
reparations is pronounced by the agreements themselves. 29
54. Against this background, Italy does not claim that Germany did not fulfiU its contractual
obligations under the 1961 Agreements; however, it certainly claims that Germany did not
recognize aIl the consequences foUowing from those Agreements, including the obligation to
provide appropriate reparation to aU victims not covered by the Agreements. These
obligations directly flow from the recognition, which occurred through the 1961 Agreements,
that there were reasonable grounds and ample legal justifications to reopen the issue of
reparations for war crimes and other serious violations of IHL. These obligations should have
been (and should still be) fulfilled by Germany either under German legislation or by other
unilateral means, or by taking aU other necessary and appropriate steps to do so, including
through further agreements with Italy.
55. But more must be added: Germany challenges the Italian position, which attributes great
relevance to the 1961 Agreements, by arguing that these Agreements, as weIl as the rest of
German legislation on reparations, including the 2 August 2000 Law on the Foundation,
merely represent gestures of goodwill by Germany corresponding to no obligation under
international law. This is inaccurate and unpersuasive. Neither the 1961 Agreements nor the
Law of 2000 can be considered as merely unilateral acts performed ex gratia. First of aIl, it
seems quite clear that no treaty can be really seen simply as a gesture of good will and cannot
be considered a unilateral act. Secondly, as is well known, both the 1961 Agreements and the
28 SeePierre D'ArgentLes réparations deguelTe en droit internationalpublic: La responsabilité internationale
desÉtatsà l'épreuve de la guenBruxelles/Paris 200p.205 et seq.
29Ibid..
21 Law of 2000 were the result of international pressure and intergovernmental negotiations. In
particular, the Law of 2000 (which is formally a unilateral act) was adopted as a result of
intense negotiations with several States and chiefly the United States ofAmerica; additionally
a Joint Declaration of aU parties involved in the negotiations was adopted. This is explicitly
recognized in the Preamble ofthe Law, 3o and has been reaffrrmed by the Constitutional Court
of Germany / l as weU as by leading scholars. 32 It is also interesting to note that pursuant to
Section 5 of the Law the Board of Trustees of the Foundation is made up of 27 members,
including several representatives named by foreign Governments. 33.
56. Italy does not intend, at this stage in the proceedings, to develop aU the arguments which
demonstrate that Germany's contention is incorrect, since these are matters concerning the
merits ofthe case, and they should not need to be discussed in this phase. However, Italy must
note that the 1961 Agreements responded to a logic flowing from the clear obligation to
compensate serious violations ofIHL. The circumstance often alleged by Germany that the
payments were made as a gesture of goodwiU and ex gratia has no foundation and is clearly
contradicted by the fact that the 1961 treaties were part ofa much larger process ofsettlement
of claims which was mandatory (see Italy's Counter-Memorial, Chapter 5). In particular, the
"Indemnity Treaty" belongs to a number of bilateral treaties concluded between the Federal
Republic of Germany and other Western European states between 1959 and 1964 which were
strongly linked to obligations ofa non-derogable nature, as explained in more detail in Italy's
Counter-Memorial (paras. 5.15 ff.) and as will be further demonstrated in the course of the
proceedings.
57. In any case, the mere fact that Italy and Germany have opposing views on these and other
issues directly lin1ced to the meaning and scope, as well as the effects, ofthe 1961 Agreements
(and subsequent German practice) proves that there is "...a disagreement on a point oflaw or
30
The Preamble of the Law explicitly provides that "this Law and the German-U.S. intergovernmental
agreement provide adequate legal security for German enterprises in the United States of America, that the
German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The
Bundestag intends to keep alive the memory of the injustice inflicted on the victims for coming generations as
well. (see Annex 7 to CM)
1 2 BvR1379/01 (Annex 9 to CM) at para. 5, where the Court clarifies that "negotiations took place between the
Federal Government of Germany and governments of other States involved in the Second World War concerning
compensation for forced labourers used in German companies and in the public sector".
32
See Legal Opinion Drawn up by Professor Dr. Christian Tomuschat, 31 July 2001, on "Entitlement of Italian
Military Internees to Benefit under the Law Creating a Foundation 'Remembrance, Responsibility and Future'?",
Annex 8 to CM), p. 9 (point 2) of the English translation, where it is clarified that "on 17 July 2000 an agreement
was reached between the government of the United States of American and the government of the Federal
Republic of Germany on the "Remembrance, Responsibility, and Future" Foundation. On the same day the
principles of the compensation arrangement were also approved in a Joint Statement by the governments of the
Republic of Belarus, the Czech Republic, Israel, Poland, the Russian Federation, Ukraine, the Federal Republic
of Germany and the US. On 2 August 2000 there followed the implementation of these international legal
actions through the Law setting up a 'Remembrance, Responsibility and Future' Foundation".
33
Section 5: The Board of Trustees.
22 fact,a conflict of views...." between the parties, 34and places the 1961 Agreements and their
consequences at the heart of the dispute.
58. The fact that Germany was fully aware that with the 1961 treaties a new era was going to start
is further attested by the fact that after the conclusion of the 1961 treaties, the Federal
Republic of Germany and Italy proceeded to settle other still pending claims arising from the
time of World War Two. This clearly contradicts the argument that aU issues relating to
claims originating in World War Two events were closed by the 1961 Agreements. For
example, in the treaty concluded on 19 October 1967, "on the settlement of issues of a
proprietary, economic and fmancial character connected with the Second World War", 35 Italy
and Germany agreed that Italian nationals who had suffered war damage to property in
Germany would have the same ghts for compensation as enjoyed by German nationals under
the relevant Germari legislation (Article 2(1» . This is clear confIrmation that the issue of
reparations was defmitely reopened with ·the 1961 Agreements and is still in search of a fmal
settlement.
d) German Practice after 1961 and in Particular the 2000 Law on the "Remembrance,
Responsibility andFuture"Foundation, andits ImplementingMeasures
59. FinaUy, apart from merely pointing to the 1961 Agreements as new facts, Italy also considers
that from 1961 onwards Germany has failed to respect the principle that reparation would be
granted to Italian victims (a principle which Germany had established in 1961 and not before).
60. As mentioned above, the 1961 Agreements specifIed that Italian victims could resort to
German legislation. However, the implementation of this right was denied. The feeling Italian
victims had is that they were discriminated because Fascist Italy had been an Ally of the Third
Reich for the frrst half of the war and Germany considered it inappropriate that ltalians should
benefIt from reparations.
61. While it should be recalled that in the immediate aftermath of World War Two the whole
issue of reparation was govemed by fmancial concems more than strict adherence to legal
principles, it successively became clear that many pending matters needed to be addressed.
However, it was decided that various aspects relating to the issue of reparation could still
wait. After Germany's reunifIcation, in the early 1990s it became clear that there was no
34MavrommatisPalestine Concessions,JudgmentNo. 2, 1924,.C.I.J., Series A, No. I l..
35Abkommen zwischen der Bundesrepublik Deutschland und der ltalienischen Republik über die Regelung
vermogensrechtlicher, wirtschaftlicher und finanzieller, mit dem Zweiten Weltkrieg zusammenhangender
Angelegenheiten - Accordo fra la Repubblica Federale di Germania e la Repubblana per il regolamento
di questioni patrimoniali, economiche e finanziarie connesse alla Seconda Guerra Mondlale; Bundesgesetzblatt
1969 II356
23 longer any reason to keep postponing, and a process started (which in the second half of the
1990s was rather pushed by various pending cases around the world, including sorne in US
Courts) to persuade Germany that further gestures towards victims of atrocities during World
36
War Two were indeed necessary. This process lead to the 2000 Law on the "Remembrance,
37
Responsibility and Future" Foundation. The adoption of this law and the procedures
triggered by it created a new expectation in many Italian victims, who massively applied to
claim reparation for the serious violations of !HL suffered during the war, which were
eventually denied. 38
62. As explained in Italy's Counter-Memorial, the 2000 Law and its implementation have brought
gross injustice against Italian victims, on the basis of ambiguous and unconvincing
39
arguments. It is precisely the persistent denial of justice that determined most of the
resulting case law against Germany in Italian courts. In essence, since 1961, despite the
admission that reparation obligations existed, and the expectations created by stating that
steps had been taken without prejudice to any rights victims might have under German
legislation, no (or very few) reparations have actually been made.
63. At this stage of the proceedings, Italy considers that it is not necessary to dwell further on
these matters. Italy is confident that there will be ample opportunity for deeper exchanges of
views when the Court cornes to deal with the merits of the Counter-Claim, considering that aU
the events at the origins of the dispute between Italy and Germany took place after the critical
date and as such they aUow the Court to exercise its jurisdiction.
36For an overview, see the reports of the Federal Government of 6 May 2005 (Drucksache des Deutschen
Bundestages 15/5505), 19 April 2006 (Drucksache des Deutschen Bundestages 16/1275), 4 April 2007
(Drucksache des Deutschen Bundestages 16/5001), 28 April 2008 (Drucksache des Deutschen Bundestages
16/9047) and 16 April 2009 (Drucksache des Deutschen Bundestages 16/12657).
37Bundesgesetzblatt 2000 l, 1263. For analysis, see Hugo1.Hahn, Individualanspruche auf Wiedergutmachung
von Zwangsarbeit im Zweiten Weltkrieg - Das Entschadigungsgesetz yom 2.8. 2000, Neue Juristische
Wochenschrift 2000, 3521. For a critical assessment of the law (as "enabl[ing] the culprits to evade accepting
any real responsibility for the enslavement of millions, while cloaking fuis evasion in reverence for the slaves"),
see Libby Adler and Peer Zumbansen, The Forgetfulness of Noblesse: A Critique of the German Foundation
Law Compensating Slave and Forced Laborers of the Third Reich, in Peer Zumbansen (ed.), Zwangsarbeit im
Dritten Reich: Erinnerung und Verantwortung - NSForced Labor: Remembrance and Responsibility, Baden
Baden: Nomos, 2002, pp. 333-392.
38Decision of 18 June 2003, case no. 6 S 35.03. See also the decision of the VerwaltungsgerichtBerlin of 8
September 2004 (case no. VG 9 A 336.02) (disrnissal of the lawsuit because of lack of standing to sue). For
further sirnilar lawsuits filed in the Administrative Court of Berlin, see the report of the Federal Government, at
19 et seq. And see also Case no. 6 M 20.03, available in the JURlS database.
39On 28 June 2004, a Chamber of the German Constitutional Court (Bundesverfassungsgericht) decided to not
adjudicate constitutional complaints brought before the Court by an association of former ltalian rnilitary
detainees and 942 such former detainees individually. Cf. Case no. 2 BvR 1379/01; Neue Juristische
Wochenschrift 2004, p. 3257. For a critical review of the decisi,n see Bardo Fassbender, "Compensation for
Forced Labour in World War Il:The German Compensation Law of 2 August 2000", 3 Jou171al ofInte171ational
Criminal Justice (2005), pp. 243-252. See also the decision of the Bundesverfassungsgericht of 7 December
2004 (case no. 1 BvR 1804/03) (non-acceptance of a constitutional complaint for lack of prospect of success; no
violation of the complainant's constitutional right to propNeueJuristische Wochenschrift 2005, p. 879.
24e) Conclusions
64. In sum the main point of Italy's Counter-Claim (the fact that Italian victims have not yet
obtained reparation) is precisely linked to the new facts which occurred in 1961 and the whole
set of subsequent facts (acts and omissions by which Germany has denied reparation to
individual victims), which are aIl posterior to the critical date. These new facts are essentially
the 1961 Agreements, but also the subsequent practice, the measures adopted by Germany
under German legislation to make reparations available to victims of serious violations of
international law attributable to the Third Reich, and the persistent discrimination towards
Italian victims. The very heart of Italy's Counter-Claim is precisely connected to the
relevance of the 1961 Agreements and Germany's subsequent practice conceming
reparations, inc1uding the decisions based on the 2000 Law which objectively discriminate the
large majority of Italian victims.
65. Against this background it is evident that the Court has jurisdiction over the Counter-Claim
and will be in a position to interpret and analyse the 1961 Agreements in the light of their
provisions as well as of their implications. It must be underlined that Germany has indeed
explicitly recognized the existence of a dispute between the Parties revolving around the
meaning and the impact of the 1961 Agreements. Germany "does not deny" and on the
contrary explicitly affrrms "that there exists in fact a certain divergence of opinions regarding
4o
the legal connotations of the two 1961 Agreements". Moreover, the Court also has
jurisdiction to determine whether or not the subsequent German pnictice, and above aIl the
2000 Law and its implementation, constituted an infringement of the rights to reparation of
Italian victims.
40PO, para.35,p.22.
25V. Requests
66.or the reasons set out above, Italy respectfully requests the Court to adjudge and declare:
a)hat the Court has jurisdiction over Italy's Counter-Claim;
and, correspondingly,
b)hat Germany's preliminary objections are rejected.
Rome, 18 May 2010
Ambassador Paolo Pucci di Benisichi
Agent of the Government ofItaly
��
Dr. f1ello
Ag�� � IWY
26
Written Observations of the Italian Republic (Article 80 of the Rules of Court)